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Bell v. Utica Corp.6/5/2003
This opinion is uncorrected and subject to revision before publication in the Official Reports.
(*1)
MEMORANDUM AND ORDER
Calendar Date: April 25, 2003
Appeal from a decision of the Workers' Compensation Board, filed March 11, 2002, which ruled that claimant's injuries were the result of his willful intention to injure another and denied his claim for workers' compensation benefits.
Claimant, a technician, filed a claim for workers' compensation benefits alleging that, on June 15, 1999, he sustained injuries to his neck and left shoulder as the result of a work-related altercation with a supervisor, Bruce Benson. The (*2)pair exchanged words over whether claimant would inspect a machinery part. Benson testified that after claimant approached him, he touched claimant on the arm and asked him "to go back to your work station or you're going to get fired." Benson asserted that claimant responded to his touch by pushing him backwards with both hands and Benson fell to the ground. On the other hand, claimant testified that Benson did not merely touch his arm. Instead, he indicated that Benson grabbed his left arm, forcing him backwards causing injury to his neck and shoulder. According to claimant, he pushed Benson away with his left hand causing Benson to lose his balance, however, Benson did not fall. Claimant was terminated as a result of this altercation.
The employer and its workers' compensation carrier controverted the claim, arguing, inter alia, that the injury was not compensable since it arose out of claimant's attempt to injure Benson and not within the scope of his employment. After a hearing, the Workers' Compensation Law Judge (hereinafter WCLJ) found the claim compensable, however, the Workers' Compensation Board reversed, finding that claimant's injuries were "occasioned by the willful intention of the claimant by starting the altercation which eventually resulted in his injure ." The claim was dismissed, prompting this appeal.
Initially, claimant argues that the Board's decision should be reversed because it was founded, in part, on hearsay information that was not part of the record before the WCLJ. Specifically, claimant notes that the employer attached to its posthearing submissions an investigative report that was rejected by the WCLJ, as well as three written statements from purported eyewitnesses who did not testify at the hearing. Notably, while the Board's review generally encompasses only the evidence in the record before the WCLJ (see 12 NYCRR 300.13 ), the Board has the discretion to accept other evidence where the party states its reasons why the evidence could not have been presented at the hearing (see 12 NYCRR 300.13 ; see also Matter of Cutting v Richard W. Nezelek, Inc., 293 AD2d 829, 831 ). Although the employer did not indicate that this evidence was unavailable at the hearing, we note, in any event, that the Board does not set forth that it considered this additional evidence. Under the circumstances herein, reversal is not required on this issue.
Turning to the merits, claimant contends that the Board improperly determined that he was ineligible for benefits because he was the initial aggressor of this work-related altercation. (*3)An employer is required to secure compensation for an employee who suffers a disability as a result of an injury arising out of his or her employment, without regard to the cause of the injury (see Workers' Compensation Law ยง 10 ). This obligation may be dispensed with when an "injury has been solely occasioned * * * by wilful intention of the injured employee to bring about the injury or death of himself or another" (Workers' Compensation Law
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